Q&A: What the religious exemptions in N.Y.'s 'gay marriage' law do and don't cover

by Michael Foust, posted Monday, June 27, 2011 (3 years ago)

ALBANY, N.Y. (BP)--Religious exemption language that was part of a successful "gay marriage" bill in New York addresses a handful of religious liberty concerns but ignores a large number of other religious conflicts, says an attorney familiar with the issue.

The religious exemption language was critical to getting a handful of Republican senators -- four total -- to support the bill, allowing it to pass, 33-29.

The issue of religious liberty has been at the forefront of conservative concerns about "gay marriage." After it was legalized in Massachusetts in 2004, Catholic Charities chose to get out of adoptions instead of being forced to place children in same-sex homes. While the language might prevent that from happening in New York, Alliance Defense Fund attorney Austin R. Nimocks says, it would not protect a husband-and-wife photography team from state action if they declined to take pictures at a same-sex "wedding." It also would do nothing to prevent the teaching of "gay marriage" in New York schools. Alliance Defense Fund is a legal organization that fights for religious liberty.

Following is a partial transcript of an interview with Nimocks:

BAPTIST PRESS: Give me an example of what the bill supposedly would cover in its religious exemptions.

AUSTIN R NIMOCKS: A church or religious organization that, for example, owns property, would not be required to have their property used or appropriated for purposes inconsistent with their theological beliefs or views about marriage.

BP: Would the exemption protect Catholic Charities and prevent the problem that they had in Massachusetts?

NIMOCKS: It's hard to say because you don't know how all this is going to be interpreted. But I would say that Catholic Charities would likely be covered [by the exemption] because of the religious nature of Catholic Charities. But if you have a private adoption agency that is not overtly religious but believes they want to adopt kids out only to moms and dads -- they're not covered.

BP: You're saying that the term "religious" is up to a judge's interpretation.

NIMOCKS: Absolutely. Where a conflict arises, it will be played out in court or some tribunal. This language does not cover everything it needs to cover and everybody that needs to be covered. In terms of what it purports to cover, it remains to be seen whether it will be interpreted in the way that many legislators who enacted it are promising it will be. There are significant holes in this religious liberty language.

BP: What are some examples?

NIMOCKS: It does not protect individuals. It does not protect private business owners. It does not protect, for example, a bed and breakfast owner who is using their own private personal property in the type of intimate setting that a bed and breakfast is. It does not protect licensed professionals. For example, it does not protect counselors. It also does not protect lawyers -- you may have a family law attorney who does not want to do a same-sex divorce because of their deeply held religious beliefs. It does not protect fertility doctors who may have a strict belief and only want to help [heterosexual] married couples because they believe a kid deserves both a mom and a dad.

BP: So it would not cover wedding photographers, such as the famous case in New Mexico? [A state judge ruled in 2009 that a husband-and wife-owned photography company violated state anti-discrimination laws when they refused to take pictures of a lesbian commitment ceremony.]

NIMOCKS: No, it absolutely would not, and that's a problem. And that's just one type of artist involved in your traditional, everyday American wedding ceremony. You've got invitation printers, you have caterers, cake makers. You've got several different types of professions that can all be impacted by this, and this language makes no effort whatsoever to protect them.

BP: Would it cover a situation similar to what happened in Ocean Grove, N.J.? [Where a Methodist-owned beachfront property lost part of its tax-exempt status because its leaders denied use of the property to a lesbian couple for a commitment ceremony.]

NIMOCKS: It's unclear.

BP: Are public schools covered?

NIMOCKS: The most glaring omissions from this bill -- what it does not cover -- are individuals and business owners and schools and school officials. It does not protect our children.

BP: Which means that "gay marriage" can be taught as normative and be protected by state law?

NIMOCKS: That is correct. It does not exempt one of the most important things that should be exempted -- from what we've learned as this agenda has progressed -- and that is the intent of advocates of same-sex marriage to teach same-sex marriage as wonderful, normal and appropriate to children as young as kindergarten.


Michael Foust is associate editor of Baptist Press. Read the religious exemption law online at http://open.nysenate.gov/legislation/bill/A8520-2011